HOUSTON — A Texas appeals court has determined that a lower court did not abuse its discretion in denying a doctor’s motion to dismiss a medical negligence complaint.
Marcie Trotta sued Dr. Ajay Aggarwal and Pain Relief Center, alleging he was negligent when injecting steroids to her cervical spine using an epidural. Aggarwal moved to dismiss her complaint, challenging the adequacy of the expert report she provided in support of her health care liability claim. After a Brazoria County District Court judge denied Aggarwal’s motion, he appealed to the Texas First District Appeals Court.
Justice Sarah Beth Landau wrote the opinion issued June 11; Justices Russell Lloyd and Julie Countiss concurred.
In her underlying claim, Trotta alleged Aggarwal performed the injection while she was deeply sedated, and that she should have been only consciously sedated in order to be responsive or able to react when Aggarwal “negligently punctured her spinal cord during the injection,” according to Landau. Dr. J. Lowell Haro provided Trotta’s medical expert report. After Aggarwal initially objected to the report, Trotta provided a supplement, which Aggarwal again challenged.
According to the panel, Aggarwal said Haro’s report didn’t give proper specific about the standard of care, did not provide a basis for contending Aggarwal was liable for the acts of a nurse anesthetist and that Haro’s causation opinion didn’t address foreseeability.
“We review the entire report to determine whether it explains what the expert claims the doctor should have done under the circumstances and what the doctor did instead,” Landau wrote. The panel said Haro explained that the doctor’s obligation was to monitor the sedation level so the patient could communicate pain or discomfort, allowing for withdrawal of the needle “before additional damage is incurred, including injecting steroids into the spinal cord.”
Specifically, Haro said, Aggarwal wasn’t supposed to insert the needle until he had established he could communicate with Trotta. The panel rejected Aggarwal’s position that Haro’s report effectively required him to do the nurse anesthetist’s job, saying being observant of Trotta’s sedation level and delaying insertion until establishing communication would provide “the benefit of the patient’s reactions to assist in proper needle placement.”
The panel also said Aggarwal’s challenge of Haro’s opinion on whether he should have predicted Trotta would be overly sedated is similarly narrow to his standard of care objection.
“Haro does not contend Trotta’s damages were caused only by Aggarwal’s failure to foresee or prevent the nurse anesthetist from over-sedating Trotta,” Landau wrote. “Instead, Haro’s expert opinion is that Aggarwal should have recognized Trotta’s level of sedation as he prepared to perform the injection and, after observing that Trotta was too sedated to communicate, should have delayed the procedure until Trotta’s sedation diminished sufficiently to the point that she was communicative.”
The panel said Haro adequately explained the dangers caused by Aggarwal’s decision to proceed with the injection, and further established a causal link between his alleged breach and Trotta’s reported injuries.
Ultimately, the panel determined the trial court didn’t abuse its discretion by refusing to dismiss Trotta’s complaint. It said it didn't need to address Aggarwal’s vicarious liability argument about the nurse anesthetist because Haro’s report sufficiently alleged Aggarwal’s direct negligence.